Friday, September 30, 2011

SCOTUS is hearing oral arguments in immigration case out of the Ninth Circuit in Judulang v. Holder, Docket No.: 10-694, on issue of whether Lawful Permanent Resident who plead guilty to manslaughter in 1989, was eligible for INA § 212(c) waiver relief.

In reading the memorandum from the Ninth Circuit, the primary claim for relief by the petitioner seemed to be one of derivative citizenship through his parents, both of whom naturalized. However, the record below seems to indicate that his mother did not naturalize until he turned nineteen.

The question certified for review is:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

The Ninth Circuit held that petitioner was not eligible because under the INA as it existed at the time, there was no substantially similar statutory counterpart for aggravated felony crimes of violence in the grounds for exclusion in former INA § 212(a), and therefore Judulang was ineligible for a waiver under § 212(c).

The Ninth Circuit held that Judulang’s argument is foreclosed by the court's decision in Abebe v. Gonzales, No. 05-76201, 2007 U.S. App. LEXIS 16191, at *32-35 (9th Cir. July 9, 2007). "In Abebe, we concluded that lack of a substantially identical statutory counterpart in § 212(a) for aggravated felony sexual abuse of a minor among the grounds for exclusion rendered the alien ineligible for § 212(c) relief. Id. Abebe is controlling."

Friday, September 23, 2011

Our office took on the case of an alien who had been ordered deported many years ago. She was unaware of this fact because she came with her parents as a small child and her parents filed an asylum application with her as a rider, or derivative asylee, and their case had finished with a final order of deportation.

She went to public schools, had a social security card, in fact obtained a scholarship to attend a public university. Her parents never informed her of their immigration proceedings. She went on to marry a U.S. service member in the Air Force and was living on the base in Northern California.

She went back to visit her family in the Mid-West and while she was there, ICE raided the family home with arrest warrants for the entire family. Everyone was deported to their native country except her, because she was with her USC husband and step-daughter. This is how the case was presented to our office, final order of removal, in custody, and all appeals had been exhausted.

We filed a motion to reopen with the BIA, asking the Board to reopen so that she could file her own I-589 asylum application and alternatively, so that she could adjust her status based upon her marriage to a USC.

The legal basis for this motion was to permit an aged-out asylee to file an initial asylum application on her own behalf, pursuant to 8 C.F.R. § 208.14(f):

The denial of an asylum application filed by a principal applicant for asylum shall also result in the denial of asylum status to any dependants of the principal applicant who are included in that same application. Such denial shall not preclude a grant of asylum for an otherwise eligible dependant who has filed a separate asylum application.

Much to my surprise and amazement, the Board just granted our motion, over DHS objection, and remanded back to the Immigration Court so that she could adjust her status.

Maybe the tide is beginning to turn in the recent and continuing relentless push to deport everyone out of status.

Thursday, September 8, 2011

I just ran across this story today on Huffingtonpost and thought I should rebroadcast the story because it is a firsthand account of what happens and what it feels like to be picked up and put through the ringer by ICE.

The Story Of A Young Artist's Deportation: "In The Land That Saw My Birth, But Is No Longer My Own."

by Dani Zamora, Artist and graduate of Grinnell College, born in Mexico, raised in the U.S.

To my kind Friends,

Pardon any spelling and grammatical mistakes, this was written on my phone during a 19hr ride to Cd. Juarez.

On the morning of August 8th, 2011, my boyfriend Eric and I made a wrong turn. Unfortunately, for me, this would be a point of no return. While on our way to South Padre Island, in the southeastern tip of Texas, we were stopped by an immigration officer. It seemed just like a regular check -- making sure we were not smuggling weapons, drugs, or people. They questioned Eric and had me stay still in the car with my hands on the dashboard. They checked the trunk and under the car, then things got weird.

A total of three more border patrol trucks came by and Officer Johnson* simply took a look at me and asked to see some form of identification. I reached for my wallet and pulled out my California issued identification. He walked away with it, checked it, and I overheard them say that there was nothing wrong.

He then input my name in his database. He came back to me and told me to stop lying to him. He wanted me to admit that I had just crossed the border. I told him I wasn't lying. He told me to step out of the vehicle. He gave me an ultimatum and told me that if I did not tell him the truth, he would press other charges against me. He turned to Officer Castillo and told him to take me with. I faced the car, put my hands behind me, and felt the handcuffs close around my wrists. Their reasons? They told me there were many people with my name who were criminals and had warrants out for their arrest.

Eric looked at me in disbelief. He looked as if he were waiting to wake up from a horrible nightmare. I smiled, I him it would be okay. What was there for me to fear? I had a job permit, a social security number, a state issued ID and had a clear record. As they put me in their truck, forcing me to sit back with my wrists aching from the handcuffs, I smiled one last time at Eric knowing it would all be over soon. This was a misunderstanding.

I was transported to an immigration processing office in McAllen, Texas. I was stripped of my belongings. My prints and my pictures were taken. They pulled about every single criminal record they couldfind which correlated in any way with my name and birth date and nothing showed. I saw them print blank page after blank page. All they said to one another was "still nothing".

And then he arrived. Their supervisor. He ordered them to pull up my immigration case files, I could tell this was an unusual proceeding, since the officers had no idea on how to do it. After waiting over an hour sitting in a concrete bench, they found something. Something I was unaware of until that point. Something that if I would had known, I could have fixed. Something that in a second crushed my dreams.

According to the case file, in 2003 I was issued a departure order. They told me it would have come in the mail, but I had no inkling of such a letter ever reaching me. Perhaps it got lost in transit. It did not matter. I was told I would have to leave the country voluntarily or go to jail and wait until I could get a hearing -- but they said it would take months before they could process me.

You know how they say your heart breaks? Well, I don't think it does. I think your heart hardens. I felt it. My heart became heavy as a stone, and I felt it slowly drag down from my chest to my stomach.

I asked to make a phone call, and I called Eric. He had followed us to the station and waited in the lobby. I told him what they'd found, I told him I had never heard of the departure order, and I told him I was Mexico-bound. His voice shook, told me not to leave, to stay -- to fight this. I am not cut out for jail and I was not ready to let a judge decide my fate. His last words still ringing in my ear, "I'm sorry," he said, "I ruined your life." I could hear his pain and his tears. But I tried to remain calm. I told him it was okay, and I would be back.

I signed my departure papers, and waited for the officers to finish their paperwork. I put my head down, and for the first time, I cried. I thought of the things that had just happened -- the things I could have done, the things I still had to do. But nothing, nothing made me feel any better.

The officers showed me to cell 9, a 10x20 concrete box with a metal toilet in the back. In the cell, Jesus and Miguel. They both had been detained that day, Jesus during his second attempt to cross, and Miguel during his third. They both had families waiting for them in Dallas -- families who had not talked to them in weeks. But they kept their faith. They knew they would be reunited again.

I sat on the cold concrete, staring at the wall. The wall was covered in writing: people professing their love for others, the names and dates of when they had been there, the names of their children, parents, espouses. Passages of the bible in Spanish, English, and Chinese. And I stared at that wall, wondering at the fate of all those people. Had Mariano Lopez been able to cross the border successfully and see his three children in Arlington, VA? Was Ramon with his daughters Mariela, Lucrecia, and Maggie?

One of the other detainees looked at me and asked me plainly if I was ok. The answer was plain and simple. I was not.

Dinner finally came to us, a thick piece of foul looking and smelling ham in two slices of white bread accompanied by a cooler of water. I asked for the time. The officer told me I shouldn't worry, that I'd be back in Mexico in no time. And my hunger died. The thought of the life I had just left behind filled the gap in my stomach as my heart got heavier and pushed down.

After a very long wait we were taken to a bus. Jesus sat next to me and assured me I would be alright. He then told me he also had been born in Veracruz. How the economy had taken a downturn and everything seemed to be collapsing except for a few people who were wealthy before and now were getting richer. It made sick. But that's the way economics work, even in the U.S. of A., I suppose.

We talked about his children, 2 and 5 years old, both born in Dallas. And I thought of the injustice it is to leave two kids fatherless, without means to fend for themselves other than one of the parents minimum wage income.

We arrived at the East Hidalgo Detention Facility. We were filed into the waiting room where we put our belongings into a big trash bag. We walked to a long hallway and we were given a brown suit to mark us as temporary holds, a thin blanket, a sparsely woven linen sheet, a 2" unbreakable toothbrush, a travel sized toothpaste and soap, and a roll of toilet paper. It was, by this time, 11:30pm. Splitting us in two groups, the guard showed us to a small 10x10 room and told us to change. It was amazing to see her lack of kindness, her eyes cold and unexpressive. We kept our shoes, and I noticed that everyone else's shoelaces had been taken away as means of preventing them from hurting themselves. I looked at my feet, naked with the sandals I had hoped would have been perfect to use at the beach.

I closed my eyes, and began to cry. I fell asleep for what seemed like countless hours when in reality it was only three. I woke up to a loud knock on the door but did not want to open my eyes, I wished with all my heart that I would wake up next to Eric on our bed.

The guard knocked again, he could not have been older than 23, and when I sat on my bed, he slid a food of tray in. On the tray, a stale biscuit, sweet beans, and, the only edible thing, green beans from a can. Time passed by once again, all I could do was watch the walls. Masterpieces by themselves, if taken out of context.

Once again, and this would not be the last time, they moved us to a different room where we waited and waited, and waited. At last, a guard came to get us, in groups of four. We stepped into the lobby area and awaited to enter another room where a gentleman from the Mexican Consulate was waiting to ask us some questions. One by one I saw those before me enter the room, and then came my turn.

I stated my name as asked, my date of birth, my place of birth. He then asked me how many times I had tried to cross the border, I responded none. He showed signs of being confused, as if he did not know what to write down. He asked if I needed him to notify someone of my departure, I gave Eric's cell phone number. He asked me what my address was. That's when I cracked.

"My address," as tears trailed my cheeks, "is 8600 FM 620 N, Austin, TX," I said. He shook his head and told me no, he wanted to know what my address in Mexico was. And I lost it. Between sobs I reinstated my address. I could picture BB, my cat, coming over and jumping on my lap, purring loudly as I caressed her ears. She, encompassing all my life was. My high school years in Los Angeles. My life in Grinnell College as a Posse Scholar.The life I had with Eric. The life I had designed after graduating college and deciding to stay in Iowa. My newly made life in Texas. My life as an artist.
I stepped out of the room, devastated. Having finally understood that this was the point of no return. That I would set foot in Mexico and perhaps never see my cat, Eric, or any of my beloved friends at home again.

I returned back to the room with the others, and waited for a very long time. We were given our tray of corn, cabbage, a fishy smelling brownie, and pasta with some sort of mystery meat. I could only eat the vegetables. My heart sunk as low as it could go. And the wait continued. We were moved again to the room where we first changed, they needed the rooms for other men who had been captured. Their faces also lacking any hope. That place completely drained hope.

In the small room, I encountered Jesus. He asked me if I would cross the border illegally, and I said no. I would come back to my loved ones the way I should. I would apply for reentry and hope for the best. I had faith in the legal system, I said, I believe it punishes, but it can also reward.

A couple hours later, we were rounded up outside the room, we faced the wall, and on went the cuffs around my feet. The metal chain hitting the floor and pulling the cuffs down cutting into my ankles. Then I was made to turn around, and my wrists were bound and held close to my belly by yet a another heavier chain that went around my waist.
I could hardly walk, and then we were pushed back into the small room. Overcrowded, hot, with no windows or airflow, we waited, I was able to sit down, but few had such a pleasure. The metal rings around their hands and feet making it impossible to move. We stayed like that for two hours until finally a bus came. We were taken to the bus in the order we had come in. The walk, an impossible feat. And we boarded the bus.

We rode the bus for another hour or so, till we reached a small commercial airport.A plane landed, and the guards came back inside, taking us to the concourse. There we saw a large passenger plane. 29 windows, of five seats rows. It unloaded many passengers either being released or being taken to the facility from which we came. And when they were all down, their buses gone, we started, one by one, in the order we had arrived, our way up to the plane.

The security team by AKAL formed two lines flanking the plane, and one by one we made our way to be patted down. My turn came and I stepped towards a young blond lady who greeted me with a frown. Her first question was if I spoke English, to which I replied yes. She ordered me to open my mouth and asked if I had any piercings as she patted me down. She then asked me how long I had been in the U.S. I told her 11 years. She seemed surprised. I told her I was leaving all I'd worked for behind, but I looked forward to have it back. She smiled, said my English was very good and I should be back. Just make sure you don't get caught this time, was her advice.

We flew from that far east Texas town all the way to Yuma, Arizona, 29 of us in a giant air craft. A great use of our tax money, if you ask me. We were given dinner, the white bread sandwich with ham and a small water bottle.

When we landed, I knew the journey would be over soon, I was eager to talk to Eric, to my mom and dad. We landed and were taken to another bus, this one at least had a step stool for the impossible climb up. The bus took us behind a building, to the dark area of parking lot, the guard instructed us, this time in Spanish, that we would step out, in groups of four and have our chains removed. Foreign relations, he said. As my chains came off my heart rose up. As if somehow hope had been restored. I stepped back to the bus this time as a hopeful man.

We rode the bus along the U.S. - Mexico border, a great rusted metal wall, which otherwise would had been an amazing Richard Serra installation. The wall that prevented many dreams from coming true, the wall that would come to signify the separation from my youth.

And so we arrived at the Calexico crossing bridge. We, among many, to step onto Mexican land as if for first time. And my mind was racing for the fight to come. The Mexican flag fluttered in the air, and it reminded me of the pledge of allegiance I said everyday in school. One nation under God, indivisible, with freedom and justice for all. But where had my freedom and justice been these last two days? The struggle was about to begin.

I stepped out of the bus, collected my bag with my wallet and phone, and set foot, for the first time in 11 years, in the land that saw me be born but no longer felt my own.

Thursday, September 1, 2011

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University released information about the asylum decisions of 233 individual judges in the nation's special Immigration Courts. This report is available in an updated application developed by TRAC their website.

What is interesting to note, the overall denial rate of all asylum petitions in 53.2% during the latest period reviewed, 2006-2010. However, if the alien is not represented by an attorney, as 11% of all asylum seekers were, then that subcategory's denial rate rises to 88%.

In our immigration courts in San Francisco, IJ Murry leads the pack in denying over 90% of all the asylum cases he hears.

This is the link for the full statistics of all the IJ's across the country.